English Legal System
Reading a Statute
Aims
•
The aims of this session are:
1. To enhance and develop your knowledge of
how a statute is structured;
2. To introduce you to the rules of statutory
interpretation which the judges use;
3. To critically assess those rules in relation to
specific examples;
4. To attempt to read a statute and answer
some fundamental questions on it.
Outcomes
•
By the end of this lecture you will able to:
1.
2.
3.
4.
Locate a statute;
Recognise the Long title;
Recognise the short title;
Identify sections and subsections of a statute and how to read
them in conjunction with one another;
Identify the interpretation section of the Act and how this
applies
Identify the importance of statutory guidance notes and
State what the rules of statutory interpretation are and how
they are applied by the courts in practice.
5.
6.
7.
Sources of Law
We looked in a previous lecture at sources of
law
In this lecture will be looking at legislation and in
particular primary legislation and how it
should be classified
What is legislation? How can legislation be
classified?
•
Primary and Secondary
•
Bills, Acts of Parliament, Statutes
Scope of Acts of
Parliament
• Public Acts, Private Acts
• Scope of Acts of Parliament, parliamentary
sovereignty – no geographical limits on
Parliament (although will not always)
• Remember the English Legal System only
includes England
What is a statute?
• We saw in the last lecture that a statute is a bill which
has been approved by the Queen, Lords and
Commons
• In England and Wales it is, with the exception of
European Law, the supreme legal source which takes
precedence over any other law if there is a conflict
• It is important, therefore, to be able to identify the
different parts of a statute and how they come
together and should be read
How to find a statute?
•
Statutes are available in both printed and electronic form
•
The most authoritative series of statutes in the library is called Public
General Acts
•
Halsbury’s also produce a series entitled the Statutes of England
•
Online statutes can be accessed through variety of different databases
– the Butterworths Direct service provided by LexisNexis, and also the
HMSO website, www.hmso.gov.uk
•
The latter only has Acts of the United Kingdom Parliament dating back
to 1988 and these are listed by the date that the statute was passed so
that you will need to know this before you can locate the correct statute
•
Butterworths on the computer provides a search engine
Different styles of drafting a
statute
The drafting of statutes is affected by the aims and objectives that statute
is trying to achieve. These can be characterised broadly as follows:
1)
2)
A statute drafted in wide terms to allow discretion in the exercise of
policy;
A statute setting down a clear rule that must be followed.
Statutory instruments are used to fill in the detail of the main provisions in
an Act of Parliament
There have been many criticisms made of how statutes are drafted – these
will be covered when we look at the law-making process as part of
the institutions of the English Legal System
Citation of Statutes
•
Name and Year – now most common
E.g. The Scotland Act 1998
•
Year and chapter number
E.g. The Unfair Contract Terms Act 1977, c.45
The Acts of Parliament in any year are divided into chapters and numbered
according to the order in which they were passed that year
•
Regnal Year and chapter number
Gaol Act 4 Geo 4 c 64 the 64th Statute of the 4th year of George IV’s reign
Contents of a statute
a)
b)
c)
d)
e)
f)
g)
h)
Short title, e.g.
Official reference
Long title
Date of Royal Assent
Preamble
Enacting formula
Sections, parts, schedules
Extent
Contents of a Statute
continued
i)
j)
k)
l)
Commencement
Definition section
Amendments
Express repeals
Exercise
Find a copy of the Scotland Act 1998. Find the different sections of
the Act listed above.
The main body of the
statute
• Sections, subsections, paragraphs
The main body of the Act is divided into sections,
subsections and paragraphs
It is important to pick up on the connecting words which
are used to link these different provisions
The provisions must be read as a whole refer than in
part only
Examples from the Scotland
Act
• The short title of this Act is obvious, it can be cited as the
Scotland Act 1998
Not all titles are so straightforward or give a clear indication of what
the subject matter of the statute is, e.g. The Unfair Contract
Terms Act 1977
• Read the long title of the Act:
‘An Act to provide for the establishment of a Scottish
Parliament and administration and other changes in the
government of Scotland; to provide for the variation of the
basic rate of income tax in relation to income of Scottish
taxpayers in accordance with a resolution of the Scottish
Parliament; to amend the law about parliamentary
constituencies in Scotland and for related purposes’
Scotland Act exercise
continued
Questions:
1. What is the purpose of the long title?
2. How many objectives does it lay down
for the Act to achieve?
3. Can you think of any difficulties
presented in drafting the long title of
an Act?
Date of Assent and
Commencement
• The date at the top of the Act is the date of
which the Act received Royal Assent, for
further information in this process – see
Parliament and law-making lecture
• This can be the date of commencement
• However, often there are commencement
procedures in the Act itself
Royal Assent and
Commencement
• In the Scotland Act, this can be found at s.130 and provides as
follows:
‘130 (1) Sections 19 to 43, Parts II to V, sections 117 to 124 and
section 125 (except so far as relating to paragraphs 10, 11,
19 and 23 (1) and (6) of schedule 8) shall come into force on
such day as the Secretary of State may by order appoint
(2) Different days may be appointed under this section for
different purposes’
Questions and answers
• What do you notice about the commencement procedures here?
• Who do they give power to to bring in the legislation?
• Why do you think that they come into force at times to be
specified rather than at the time of the Royal Assent?
• Research question: try to find by what mechanism the Secretary
of State brings these provisions into force? Can you find the
specific piece of legislation? (n.b. this matter will be dealt with in
another lecture)
Approaching Statutory
Interpretation
•
These are not rules of law, they have
been developed by the judges as a
way of approaching the job of
interpreting statutes
• 3 Rules
1) The Literal Rule
2) The Golden Rule
3) The Mischief Rule
The Literal Rule
• The words used in the statute must be given their precise
grammatical meaning, even if that produces a harsh or unfair
result
• This is the departure point for the judges and is sometimes
expressed as being the first rule in the hierarchy – partly
because of Parliamentary Sovereignty, but also arguably
because rules should mean what they say
• Can mean consulting the dictionary definition in an authoritative
source
• Also can mean the meaning to which society gives a particular
word
Example of the use of the
literal rule
• Cutter v Eagle Star Insurance Co. Ltd [1998] 4 All ER 417,
House of Lords
In the case Mr C, the Claimant, was injured in a car. The
Defendant’s insurance only covered him under the Road Traffic
Act 1988 for the use of his car ‘on any highway and any other
road to which the public has access’
The question for the court to determine, therefore, was whether the
multi-storey car park was a road?
The court applying the literal rule held that a multi-storey car park is
not a road
Inland Revenue
Commissioners v Hinchy
• Concerned the construction of s.25 (3) of the Income Tax Act
1952
• The Act stated that anyone convicted should be subject to a
fixed penalty and treble the tax which he ought to have been
charged under the Act
• The Court had to decide whether the amount should be based
on the whole amount that was liable under the statute of just the
unpaid amount
• The Court decided that on the literal rule he was liable to pay
the whole amount, even though this was a harsh decision
Criticism of the literal rule
• Does literal mean literal?
• Philosophers spend a great deal of time looking into
the meaning of words – in some cases there can be
legitimate disagreement as to what a specific word
means
• Slapper & Kelly give the example of R v Maginnis
[1987] AC 303 in this case the judges both further
down the hierarchy and at the highest level were
unable to agree as to what the word ‘supply’ meant in
the context of the case
The Golden Rule
• Words must be given their ordinary, everyday
meaning only in so far as they do not produce
an absurd or unfair result
• Words must be given their ordinary meaning
except in so far as they contravene some
element of public policy
Adler v George 1964
• The Defendant was charged under the
Official Secrets Act 1920 with ‘obstruction in
the vicinity of a prohibited area’
• However, D at that time was actually in the
prohibited area
• Under the Golden Rule the Court held that
such a construction would be an absurdity
and could not have been the intention of
Parliament
The public policy ground
• The golden rule will sometimes be used to prevent an
affront to public policy
• In R v National Insurance Commissioner ex parte
Connor (1981)
Mrs C killed her husband and was convicted of
manslaughter. She claimed a widow’s allowance
under the Social Security Act 1975. The question
before the court was, therefore, whether Mrs C was a
widow?
The Court held that she was not
The Mischief Rule
• Established in Heydon’s Case (1584)
• Aims at looking at the reason behind the
introduction of the legislation, the mischief
which it was trying to prevent
• Slapper & Kelly argue that it is more suited to
a time when a preamble to the Act would lay
out what the purpose of the Act was
The Mischief Rule in
Practice
• Consider the following example:
Mr C is observed pushing his pedal bicycle
along the road whilst drunk and obviously not
in proper charge of it. He is arrested and
charged under the Licensing Act 1872 with
‘being drunk in charge of a carriage on a
public highway’
Is a pedal bicycle a carriage?
Corkery v Carpenter [1951]
1 KB 102
• Court held that a pedal bicycle is a
carriage – applying the Mischief rule
• The Mischief which the Act was
attempting to prevent was the danger
posed to other road users by wheeled
vehicles being used on the road whilst
the user was drunk
Interpretation and the
Human Rights Act 1998
• Act came into effect October 2000
• Special requirements imposed on the judiciary with
regard to interpretation
• S.3(1) of the Act provides that the court must interpret
primary legislation as compatible with the Convention
Rights ‘so far as it is possible to do so’
• We will look at the Convention in more detail in later
lectures
Presumptions
• That statutes do not alter the common
law
• That Parliament does not intend to oust
the jurisdiction of the courts
• Do not operate retrospectively
• Do bind the Crown
• Make a person criminally liable without
guilty intent
Aids to Construction
•
Internal:
a) The Long Title
b) Headings – these, subheadings and
marginal notes, do not form part of the
law
c) Marginal Notes
d) Punctuation
Aids to Construction
•
a)
b)
c)
d)
External
Historical context
Dictionaries and other literary sources
Social and commercial practice
Other statutes
Summary of lecture
•
You should now be able to:
1. Locate primary legislation;
2. Explain how the various parts of a statute
work together and find these in different
contexts;
3. Describe the rules that judges use in
interpreting statutes and the status of those
rules;
4. Critique the rules of statutory interpretation.
Further reading
• Slapper, G. and Kelly, D., The English Legal System
(London: Cavendish Press, 2004, 7th edition), chapter
5 ‘Judicial Reasoning’ in particular 5.4 ‘Statutory
Interpretation’
• Hanson, S., Legal Method and Reasoning (London:
Cavendish, 2003, 2nd edition), chapter 3
• Smith, A.T.H, Glanville Williams Learning the Law
(London: Sweet and Maxwell, 2002), chapter 7 The
Interpretation of Statutes